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UKSolicitorJA, Solicitor
Category: Immigration Law
Satisfied Customers: 4312
Experience:  English solicitor with over 12 years experience
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DearCustomer Hi. My name is XXXXX XXXXX I am writing

Customer Question


Hi. My name is XXXXX XXXXX I am writing to ask you some legal information. I do not know whether you have answers to all the questions I have, but I will explain my current situation before the questions. I am;

South Korean by nationality, reading
DTC Systems Biology MPLS at postgraduate level, University of Oxford (commenced in 2011), with
Tier 4 Visa until 31st OCT, 2016 currently.

I have first arrived to this country in December 2002, and I have had continuously running Tier 4 visa up until now. I am to apply for the indefinite leave to remain for the following reasons.

1. I would like to get a job in England in future. I feel much more assimilated in this country having to have spent my entire teenage up until now.
2. As a South Korean person, I have to complete the compulsory military service. Complication here is that I know I will have a hard time in normal services, as my sexuality may be of problem for them. For those who obtained a permanent residence in any other countries, there is an alternative service, where this would be as big a problem.
3. I am in a relationship with my partner who is British, and so are all my friends with whom I am in contact.

1. Although my visa is continuous for more than 10 years, I have been absent from this country for more than 540 days. Is this rule very strict for the successful application currently?
2. If I wait until 2016 April, my absence from this country will add up to 605 days. If I wait until 2016 September, it would be 564 days. However, my visa will be running out at the end of September 2016. Is this problematic? Do I have to remain in this country while my application is being processed?
3. What kind of information can I provide to fortify my case? Would my ties in this country (such as my friends and partner, association with my university and future job I would like to go for etc) and my sexuality (which may be problematic in South Korea) help my application?

I tried to make the e-mail as succinct as possible, but I had to provide as much information as possible at this level..

Thank you so much in advance, and I am looking forward to your reply.

Yours sincerely,

Submitted: 2 years ago.
Category: Immigration Law
Expert:  UKSolicitorJA replied 2 years ago.

Hello Tom,

It is good to hear from you.

It seems that you built up your 10 years lawful residence in the UK in 2012 i.e. 10 years after you first arrived here in 2002. You should therefore count your absences outside the UK up to 2012. As long as you were not out of the UK for 180 days continous at any time and as long as you were not out of the UK for an excessive amount of days over and above the 540 days, I would suggest that you apply for ILR right away.

There is discretion if you exceed the 540 days out of the UK over the 10 year period e.g. medical, compelling reasons, so I would not worry too much about this if I were you as long as you meet all other criteria.

You do not need to give any reasons for wanting ILR as long as you have 10 years lawful residence, it would be a straight forward application in your case. Personally, I think you have a very good case for obtaining ILR here in the UK based on Article 8 (family life in the UK).


All the best -apply for your ILR as soon as possible.

Customer: replied 2 years ago.

Sorry, that much is what I know already.. That's the type of information that I can look up online anywhere, e.g. from the UKBA homepage.


As I have given you all the information above, it will only become 605 days in April 2006 - and I heard these days, the 540 days absence guideline is becoming more and more strict. What I wonder is what kind of discretion I could use, and whether there is anything else to fortify my case to obtain ILR. I just wonder what information for UKBA is helpful to consider my case to be strong, even though the absence is longer than 540 days (by about 60 days). It seems like you have dealt with a lot of similar cases so you must have the "feel" for which pieces of information is helpful for the application, and I want to know your personal experience what helped and what didn't for the discretion.


And no, I have not left this country for more than 180 days at any point. I am still thinking it will be wiser for me to apply in 2016 April when the absence goes down to about 605 days, because if I apply now, it will be more than 800 days, and I don't think that's something discretion help to overlook.


Thank you for your reply in advance.

Expert:  UKSolicitorJA replied 2 years ago.
Thank you for the further information. Yes, 605 days would be better than 800 plus days but again, both are over the limit of 540 days and you would be relying on discretion in both cases.

Also, who knows what will happen in 2016 and whether the rules will be the same.

Discretion is usually applied when you have complied with all other requirements and otherwise meet the criteria for ILR and there were good reasons for you to be out of the UK for whatever days you were out e.g. medical, attending funerals, accompanying your partner/family for work, your work requirisng you to be out of the UK etc. There is no one size fits all.

Now of course if you were out of the UK for holiday, travelling etc then you could have a hard time explaining why discretion should be exercised in your favour as you chose to stay out of choice.

I know of a case where the applicant had spent more than 1000 days out of the UK, was refused ILR initially and received ILR on appeal on Article 8 grounds, similar to you e.g. having a British partner, your friends being here etc.

Hope this clarifies.

Customer: replied 2 years ago.

This - is the information I needed. Thank you very much. Well, when they say a partner, I am sure they mean a partner by the marriage rather than a relationship, I guess.. I was out of this country, because I had nowhere to stay really, the university would not let me stay in the accommodation that I used for the term time..


However, there must be lots of students who are in the same boat as I am, and this would be a very weak case to make for discretion I guess? Anyways, I did lose my grandfather and I could make one of my holidays to be family member's illness and funeral, and one of them to be my medical reason (sleep disorder)..


Seems like I just *might* be able to pull it. Thank you very much. Also if I want to apply for ILR, and if I become in need of a lawyer, how would I get in contact with you - if you don't mind dealing with the case?

Expert:  UKSolicitorJA replied 2 years ago.

That is precisely why I "feel" like your case may go through. Please make sure you explain your absences as you have done, however, I wouldn't tell them that I had no place to stay in the UK which is why I had to be out of the UK for so long! But if you say your finances were low and you could not afford to find suitable accomodation in the UK, that would be more convincing.


You may also mention the fact that you have a partner here, no need to be married!

Sorry, we are not able to take cases from here, rules of the site, but you may look for a good immigration lawyer yourself.

All the best

UKSolicitorJA, Solicitor
Category: Immigration Law
Satisfied Customers: 4312
Experience: English solicitor with over 12 years experience
UKSolicitorJA and 3 other Immigration Law Specialists are ready to help you
Customer: replied 2 years ago.

Thank you. Everything that I needed to know. Have a great day, and thanks again for your help. However, I did hear from the lawyers that 540 days guideline has become more strict though, which is quite annoying.


Thanks again.

Expert:  UKSolicitorJA replied 2 years ago.

You are very welcome.


It may be stricter but that doesn't mean it is impossible.


The Home Office normally disregard absences of up to 900 days for naturalisation as a British Citizen applications based on 5 years residence in the UK, there is really no reason why they should not disregard similar absences over a 10 year period for along residence settlement application.


See this Nationality Instruction document:


Also, you should only count whole days out of the UK, do not count the days you fly out and fly in to the UK.

All the best

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